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Lord Williams of Mostyn: My Lords, I support the amendment. One normally thinks of investigations as being substantially conducted by police officers. However, there are many other investigating authorities which now have extraordinary powers, many of which are not known to the ordinary citizen. One thinks of departments relating to trade descriptions, VAT, Inland Revenue, and food and drink, all of which are capable of bringing criminal charges. It seems strange that an obligation should be less on those investigating authorities than on the police. For instance, what is to happen if the latest trailed provisions of the present Home Secretary about the involvement of the security services come into effect? Are they not to be subject to the code of procedure which will bind police officers investigating quite often the same class of offence--serious drugs offences, wide-scale fraud, or racketeering, if one may put it generally?
Baroness Blatch: My Lords, I, of course, understand all the concerns about the amendment, but, as I shall explain, in our view the existing provisions in the Bill are sufficient to achieve what I think we all want to achieve.
Amendment No. 46 widens the definition in Clause 15 of a criminal investigation to include investigations conducted by officers of another investigating agency as well as by police officers. Because Clause 16 refers to criminal investigations, the amendment ensures that the code of practice prepared under Clause 16 is a code for all investigators as well as for the police. That means officers of Her Majesty's Customs and Excise, Serious Fraud Office inspectors, local authority trading standards officers and many others.
I explained in the earlier debate why we did not think it possible to have one code whose provisions would apply to every investigating agency. The operational practices of such agencies are different from those of the police, and they need the flexibility to adapt the provisions of the code to their own particular circumstances. Moreover, some of them, such as the Health and Safety Executive, both investigate and prosecute. Where the investigator is also the prosecutor, it would not be sensible for the code of practice to require a person to reveal material to himself and certify to himself that he has done so.
It seems to us that the correct approach is to require other investigators to have regard to the relevant provisions of the code of practice. This is the course taken in Clause 19(1). Amendment No. 80 to Clause 19 would replace the requirement to have regard to the relevant provisions with a requirement to comply with them.
The current wording of Clause 19(1) is based on the precedent in Section 67 of the Police and Criminal Evidence Act 1984. Section 67 requires persons other than police officers who are charged with the duty of investigating offences to have regard to the relevant provisions of the codes of practice issued under PACE to which the police are subject. Subsequent case law has established that the effect of Section 67 is to apply the relevant provisions of the PACE codes of practice to such diverse groups as officers of Customs and Excise, officers of the Serious Fraud Office, store detectives and commercial investigators in so far as they are charged with the duty of investigating offences, and investigators operating with a warrant under the Copyright, Designs and Patents Act 1988. So the requirement to have regard to the provisions of the code of practice under our Bill is a real and not a theoretical obligation.
We would be reluctant to amend Clause 19(1) as in this amendment, for two reasons. First, the current wording already achieves what I think the noble Lord wants it to achieve. Secondly, requiring investigators to comply with the provisions of the code means that they must follow them to the letter. There is no flexibility to adapt the relevant provisions to their own particular
Finally, Amendment No. 81 to Clause 19 provides that the duties in Clause 19(1)--including those imposed by Amendment No. 80 to Clause 19--extend also to a person other than a police officer who is instructed to conduct an examination or investigation with a view to ascertaining whether a person should be charged with an offence, or whether a person who has been charged with an offence is guilty of it.
The noble Lord, Lord McIntosh, has explained that this is designed to ensure that persons such as forensic scientists are under the same obligations as police officers or others who instruct them. The effect of the amendments is that such persons would be required to comply with the relevant provisions of the code of practice.
This amounts to treating a forensic scientist or similar person as if he was a police officer. But a forensic scientist is not like a police officer and could not properly comply with these duties. He is an expert witness who is asked for an opinion on a particular item of material. He receives only a restricted and selected number of items submitted to him by the investigating officer, and does not see all the other material in the possession of the prosecutor or investigator. Under this amendment he would be required to retain material obtained in the course of a criminal investigation if it might be relevant to the investigation--but he will not know whether it is relevant or not. Furthermore, in most cases the only contact the forensic scientist has will be with the police or other investigator, and he would not be able to reveal material to the prosecutor as the code of practice requires.
It seems to us that the better course is not to treat forensic scientists and others as if they were charged with the duty of investigating offences, but to impose duties on those who are investigators and who are able to comply with the provisions of the Bill and the code of practice. It is not necessary to subject forensic scientists to detailed requirements relating to disclosure, because the police will be required under these provisions to ensure that the prosecutor has access to all the material he needs to form a view on whether material should be disclosed to the accused. The police officer will retain reports of work by expert witnesses, and, if necessary, the material which is the basis of the report will be available for inspection.
The noble Lord, Lord McIntosh, was quite right to chide me about my reply to him on the numbers of Secretaries of State. The Bill would accordingly not need to specify a requirement on different Secretaries of State to produce different codes of practice. But, as I have explained, it is the case that if the definition of a criminal investigation were widened to include the officers of all investigating agencies, all of them would be bound by the exact terms of the code of practice
Lord Simon of Glaisdale: My Lords, before the noble Baroness sits down, is not the phrase "have regard to" extremely uncertain? Would her point be met by stipulating that the other agencies should "comply so far as practicable" with the code of practice?
Lord McIntosh of Haringey: My Lords, I am relieved at one part of the Minister's answer. If it had not been the case that the legislation was put forward by one Secretary of State, then much of my claimed understanding of legislation, when I have opposed it over the past 12 or 13 years, would have been in error. Therefore, to some extent we have made progress.
In my over-long introductory speech, I did not repeat the argument (because I hoped that it would not be necessary) about the difference between "have regard to" and "comply with". The noble and learned Lord, Lord Simon, has properly drawn attention to the weakness of the words "have regard to". I am not reassured by the Minister's comment that it is what happens with the police and the codes of practice under the Police and Criminal Evidence Act. The fact that criminal investigations are carried on by so many agencies does not absolve the Government from the responsibility of ensuring that in effect there are codes of practice which apply to all those taking part in criminal investigations. I suggest that unless the code of practice is comprehensive in that way, the opportunity for challenge to verdicts on the grounds that the code has not been complied with--and I mean "complied with" and not "had regard to"--at an earlier stage in the investigation is that much greater.
A challenge, trial and conviction based on evidence collected by those who are not necessarily bound by the code of practice make nonsense of the whole of Part II of the Bill. Since Part I of the Bill in turn depends on the definition of matter not already disclosed under the code of practice, it makes nonsense of the disclosure provisions in the Bill.
The only argument left to the Government is that given in the Minister's rather self-contradictory reply; namely, that it would be too difficult to frame a code of practice that covered different investigative agencies. Of course it would be more difficult; of course it is easier to have a code of practice covering only the police. But that means that the Government are sacrificing completeness and justice for the sake of administrative convenience. That cannot be satisfactory.
Perhaps I may return to the example given by my noble friend Lord Williams of Mostyn about the security services. One of the arguments we shall have when the Security Service Bill reaches this House will relate to the extent to which the security services are covered by the codes of practice and the laws that regulate police work. This is a fairly non-party matter. Many in another place argue that if the security services are carrying out functions that would otherwise be carried out by the police, they must be bound by the same codes of practice as the police. They cannot be independent and unquestioned, as they are in matters of national security. The same applies to all aspects of criminal investigation.
If the Government have to redraft the code of practice to cover other agencies, then so be it. The position at the moment is that the Government have decided to take the simple way out in the drafting and coverage of the code of practice. That is simply not good enough.
I have used this analogy before, and therefore apologise to those who have heard it. The Government's approach is rather similar to that of the drunk who loses his keys. He is found looking for the keys under the nearest lamp-post. Somebody asks him, "Did you lose your keys here?". He says, "No, I didn't, but the light's better here". The Minister is in fact saying that the light is better only for police investigations, and therefore the Government will not look for a proper code of practice where it is darker but may be more appropriate. I gladly give way to the Minister.
Baroness Blatch: My Lords, I am most grateful to the noble Lord. With the leave of the House I shall address two points which I did not address in the course of my response. The first is the reference made by the noble Lord, Lord Williams of Mostyn, to the security services, mentioned again by the noble Lord, Lord McIntosh.
The new functions given to them by the Bill passing through the other place will mean that the security services will not act in their own right but in support of the police. That has been made very clear during the course of the Bill's passage. They will not be self-tasking. That is the important point. That is certainly how the police see it. The police will have the duty to conduct the investigation.
The second point, which I did not cover fully, is that subsequent case law has established that the effect of Section 67 is to apply to the relevant provisions in the PACE code for other diverse groups such as Customs and Excise, serious fraud officers, store detectives and commercial investigators. It has been proved through the working of that Act that "having regard to" the code is a very proper part; it can be taken into account if they do not have regard to the code.
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